The EU Copyright Directive is about to make the internet worse for almost everyone

By Alex Dobie
last updated

What you need to know about the European 'link tax' and 'upload filter.'

The European Union's new Copyright Directive stands to dramatically change the way we consume news and other online content. Although originally intended to ensure creators and news organizations are fairly compensated for their work, the directive will more likely make quality news harder to find, throw financial and technical roadblocks in the way of smaller online publishers and creators, stifle free speech and negatively impact internet culture.

The directive is currently in the late stages of closed-door negotiations between the European Commission, European Parliament and European Council before being put to a vote of EU member nations. If passed as-is, it'll be a major change to the balance of power around online copyright. The ripples from the EU CD are likely to be felt even outside the EU's borders -- in areas as serious as major news coverage, and as silly as the memes we see on Twitter and Facebook.

The directive is supported by some European publishing giants and major record labels and musicians like Paul McCartney. But it's faced growing opposition from tech giants, social networks and online content creators, as well as campaign groups like the EFF and academics like world wide web inventor Tim Berners-Lee.

The main controversy centers on Articles 11 and 13 of the directive, also known as the "link tax" and "upload filter" requirements.

Article 11 forces news sites to charge Google and others for snippets.

Article 11 requires online news aggregators like Google, Facebook or Twitter to pay licensing fees to news organizations when showing snippets of their coverage, and forces news organizations to charge these fees. The goal is to compensate cash-strapped news publishers for the parts of their articles being used in places like Google News, where you might see an image and short summary alongside the headline. The argument from big publishers is that Google and others are cashing in on their content by showing links and snippets on "monetized platforms," and they want a slice of the action.

On the other hand, the idea that a reader would skim past a snippet where otherwise they'd click and read the entire story is at best contentious. What's more, the EU CD requires a "non-waivable" licensing fee, meaning smaller publishers in need of extra visibility of aggregators like Google can't simply charge a link fee of zero.

As reported by SearchEngineLand, a similar law enacted in Spain in 2015 went pretty badly for all concerned, ultimately resulting in Google News being shuttered entirely in that country.

Google recently published an example of how Google News might look in a post-Article 11 world -- in essence, a search results page that at first glance appears to be broken. No extended headlines. No thumbnails. No snippets.

Google News

In December the company's VP of news, Richard Gingras, highlighted further issues for small publishers, who'd be required to enter into complex commercial agreements with individual aggregators in order to compete for online attention.

Article 11 could [require aggregators] to strike commercial deals with publishers to show hyperlinks and short snippets of news. This means that search engines, news aggregators, apps, and platforms would have to put commercial licences in place, and make decisions about which content to include on the basis of those licensing agreements and which to leave out.Effectively, companies like Google will be put in the position of picking winners and losers. Online services, some of which generate no revenue (for instance, Google News) would have to make choices about which publishers they'd do deals with. Presently, more than 80,000 news publishers around the world can show up in Google News, but Article 11 would sharply reduce that number. And this is not just about Google, it's unlikely any business will be able to license every single news publisher in the European Union, especially given the very broad definition being proposed.

It's also not clear where the line would be drawn between a snippet, which would be subject to the link tax, and a simple hyperlink, which wouldn't. Aggregators would likely err on the side of caution, lest they end up in court.

As a test case for what Article 11 might mean for publishers, Ars Technica reported in 2015 that when Spain's similar news aggregator tax came into force, smaller outlets in particular suffered a 14 percent drop in traffic, with some local services going out of business altogether.

The Upload Filter

Article 13 of the EU CD is even more problematic and far-reaching. It makes sites hosting user-created content, like YouTube, Twitter and countless others, liable for copyright infringement on their platforms. They're on the hook, and could be sued in the EU by rights holders like movie studios and TV networks for things uploaded by their users. As such, they'd be required to proactively police their platforms for copyright infringement. That means things like memes including anything copyrighted (in other words, most memes), or screengrabs taken from a movie or TV show would need to be filtered before the content is published online.

Article 13 is about more than just outlawing memes.

Since EU law includes no fair use provision -- in contrast to the U.S. -- this could be extended to include footage of movies, TV shows and games used in critique and commentary.

Protecting against legitimate copyright infringement is important. Equally though, something as draconian as Article 13 steps far over the line into stifling free expression. There's a big difference between wholesale theft of an entire copyrighted work and sharing a reaction GIF on Twitter. The latter is not true infringement in the spirit of the law, it is a part of the way we communicate online today. But that nuance is lost on the EU CD.

Since the Article 13 makes platform holders liable by default, they'd almost certainly exercise an abundance of caution, leading to plentiful false positives -- users' posts being wrongly censored. This can already be seen in YouTube's ContentID system, which scans uploaded videos after the fact and allows rights holders to either take down or siphon money from videos using their content. Often ContentID enables wealthy rights holders to monetize the transformative work of smaller YouTubers, or block such works entirely on the basis of a few seconds of infringing footage. We can expect more of this if the EU CD comes into force -- particularly if a new, even more draconian scanning system needs to approve videos and images from European creators before they go live.

It's also not hard to imagine how such extreme restrictions on tweets, YouTube videos or Facebook posts could be misused by wealthy rights holders in other ways, such as to censor or suppress criticism.

All of this is to say nothing of smaller social media platforms without the resources to develop their own copyright-scanning megafilter for user-generated content. As with Article 11, the smallest platforms stand to be hurt the most.

Indeed, had something like Article 13 been enacted 15 years ago, it's unlikely Twitter or YouTube would exist in their current form.

All but the largest of news publishers benefit from the visibility and signal-boosting that comes from placement in news aggregators. And all but the largest, wealthiest content creators benefit from the relaxed, common-sense approach to copyright enforcement that pervades social media and video platforms today. Most importantly, society in general and internet culture specifically benefits from healthy free expression on online platforms, unhindered by onerous copyright policing.

If you live in an EU country and wish to stand up for free expression and competition online, you can take action here.

Alex Dobie
Alex Dobie
24 Comments
  • Actually, there are a number of exemptions from the copyright directive, both for small platforms and for types of content (e.g. memes) that would fall under what the US considers "fair use", so there is actually some nuance unlike as you say. Platforms must also provide tools for users to challenge removals and receive a swift response, and they must provide sufficient reasoning for removals. One of the main problems of the directive is simply the technical enforceability. On the one hand, the filter system itself would be very expensive and only large platforms would be able to stem that cost without needing to license a filter system from somebody else (and yes, small platforms are exempted, but another problem is that many consider the definition of small to be too narrow). On the other hand, it would be difficult to distinguish a valid use case from a copyright violation, likely leading to many false positives even for the exemptions as the platforms would err on the side of caution. As for article 11, the idea is that unlike with Spain's case, the entire EU market would be too big for Google to ignore by shutting it out, so they would be forced to pay in this case. Whether that works out as intended remains to be seen, of course. In lighter news, as e.g. The Verge reports (https://www.theverge.com/2019/1/18/18188571/europe-copyright-directive-l...), there is far from unanimity between the EU states in this matter (Italy in particular opposes the directive in its current form for many of the stated reasons), so the last word is far from spoken on the matter. https://juliareda.eu/2019/01/copyright-hits_wall/ In addition to the link given at the end of the article, there is also a change.org petition directed at the EU Parliament here: https://www.change.org/p/european-parliament-stop-the-censorship-machine...
  • Although I didn't vote for Brexit, the UK won't be an EU member state after March 29th so this likely won't apply here
  • It'll apply there too. Companies such as YouTube will apply the regulation to the lowest common denominator in order to satisfy all countries
  • Not necessarily. I've seen countries geoblock content in the EU selectively.
  • That Google News example lol
    Back in the day, WWW used to be text-based.
  • It looks like it is not the first time this law was suggested.
    After 30 minutes of research on how to vote if you're from Denmark*, I encountered a few sites mentioning A "bad" EU copyright law, but these articles were from June/July 2018. * The page WinCen redirects to currently only contains options to vote for: Sweden, Germany, Luxemburg, Poland, Belgium and Czechia.
  • "Effectively, companies like Google will be put in the position of picking winners and losers." Don't they already do that, for all internet?
  • Exactly! Except now they will have to pay.
  • Government solutions almost always remind me of the old cartoon where one character is complaining of a sore foot, so another character hits him in the head with a hammer so he will forget about his sore foot... thus "solving" the original problem.
  • EU is notorious for that but that's not to say that government solutions are innately bad or useless... Because other things don't work either. We wouldn't be nearly as advanced or equal of a society had it not been for legal interventions outlawing barbaric, old practices, legalizing others, etc.
  • These regulations read as if they were written by those who don't understand how technology and platforms work.
  • The EU is a defacto dictatorship, run by unelected plutocrats. No country in the EU effectively has any sovereignty any more. Just to give you Americans an idea of how it works, imagine if suddenly you joined an Americas Union with all North, Central and South American countries. Now imagine pumping billions of tax payer dollars into this entity to pay for shiny buildings and huge salaries and allowances for the staff, then all of the politicians running it were simply chosen by themselves (usually failed at being a politician in their own country). Then the AU starts making its own laws and regulations that every country in the AU must follow and finally to top it all off, all people in member states of the AU would have complete freedom of movement and be able to work in any AU country. I bet you Americans would love that. Do not ever think that the EU is like a United States of Europe. It's nothing like it, not by a very long way.
  • All members of the EU run their own police force, their own army, their own healthcare system, their own courts, their own laws, ... and of course their own government, elected through their own processes by their own (and only their own) citizens following their own election laws. It is of course correct that there are some EU frameworks within which member countries must operate (e.g., on trade, standards, human rights, etc.). However, each EU member is much more sovereign than any federal state in the USA.
    The European Commission (which comes closest to a kind of "government" for the EU and to which each EU member state sends one member) is elected by the national governments of EU member states. The European Parliament is of course directly elected by all EU citizens. As for "usually failed at being a politician in their own country", I assume this can only refer to Nigel Farage, who never even won a teapot in British politics, let alone an election. There is a lot of malicious propaganda out there. I invite anybody to read up on the EU.
  • The European Court has precedent over a country's own courts and laws, you are aware of that right?
  • That is not true. The European Court of Justice (ECJ) exclusively interprets EU law. It does not interpret national law. Not a single case of national law has been decided by the ECJ, nor has a single decision by a national court been countermanded or overridden. In fact, it is not possible for individuals to appeal to the ECJ.
    What _really_ happens is that national courts (!) refer cases on EU Law to the ECJ for interpretation. Upon a decision, the national courts then implement the decision that they asked for. I know, the Daily Mail, Sun and consorts regularly publish stories of the ECJ allegedly meddling in UK law, but it's not true. Consider that the same newspapers recently also called judges on the UK Supreme Court "enemies of the people". In any way: Lee (forgive me for assuming you're British), I won't explain the minutiae of the EU further to you. All I'm saying to everybody else here is this: If you read slanderous propaganda about the EU ("dictatorship", "plutocracy", etc.), don't believe it. If in doubt, check it out yourselves.
  • > The European Court of Justice (ECJ) exclusively interprets EU law. While I am not trying to argue with your (absolutely valid) points, the things are slightly more nuanced than that... for instance, if my country is the signatory to the European Convention on Human Rights (ECHR), I can sue my country in ECJ and it might declare the *local* law to be in violation of the former. This said, since UK has chosen to incorporate ECHR into its own body of law, you do not have to deal with ECJ in this specific case, which makes it even more nuanced :)
  • Very well said. The ECJ is a lot more nuanced.
  • You are funny guy... Let see who cares about England in a few years... Beside big companies that will exploit the citizen because the only appeal you'll have will be through tax breaks.... The UK has never been a European state... You should have been put out a decade ago... The only reason you ain't a poor country is because the EU kept you for far to long... Do your hard brexit a GTFO... Nobody cares..
  • For me the example with the empty Google Search results doesn't work as the "scare" the author indented, as Google (who is raking In money by providing these links) could just pay the fees? they have the money, and if they wanna serve up news from a major (or minor) news outlet, they can just pay no? And what is the authors objection? That he is afraid that Google and other mastodonts wont serve up news easy and convenient? That to me is the price we have to pay, if we want the world to be a better place.. we have to sacrifice convenience.. that is a fact of the modern consumeristic world.. be it internet, environment, human rights or whatever.. it all stands and falls on how "easy" we want things to be!
    I am actually very positive towards the new EU laws, as journalism (and therefor democracy) has suffered immensely in the era of social media news. Clickbait, Fake News (no not Trumps fake news) and superficial content, has become the defector seller, and thereby the go-to for journalism, in a world where its all about shares and likes. As we (unfortunately) can't get rid of the social media and it's influence on people, news and democracy alike, I welcome a new/different system, that (supposedly) makes sure we can get quality journalism, or at least makes sure that news outlets gets payed no matter how many share or likes they get. It might not be perfect, but it danm sure is better than the status quo.
  • > And what is the authors objection? That he is afraid that Google and other mastodonts wont serve up news easy and convenient? I think (and I have been wrong before) that the concern is that smaller content providers are ill-equipped to handle payments directed at them and *are not* allowed to wave these payments should they prove to be a burden. OTOH the benefit for EU is obvious -- where there are payments, there are taxes.
  • While I, too, am sceptical about the specific details about the "link tax" and "upload filter", I am surprised that a) such a one-sided and decidedly not Windows-relevant article makes it to WindowsCentral, and b) well, that the article is so uncritical of the issue at hand.
    As much as I use Google and Facebook every day, I can clearly see that their business models are parasitic. In fact, on a website that was once dedicated to Windows Phone/Windows Mobile, I would expect a little more concern about Google's quasi-monopolistic business model. The EU is simply trying to level the playing field. And it's high time somebody did that, because apparently consumers won't.
  • > The EU is simply trying to level the playing field. I think you are being a little naive here (please do not take it personally) -- EU is trying to create more transactions it can tax. Whether it will benefit consumers or not is, somewhat, incidental.
  • Any additional tax wouldn't go to the EU - at least not directly. So that doesn't quite convince me. But that's not really my main point anyway. A much more critical review of Silicon Valley's business models is warranted. Political initiatives to curb their monopolies should be given more balance and fairness. P.S.: I like your very non-confrontational way of writing. Kudos! How do you do it?
  • Here's the thing. There should monetary compensation for imagery such as photographs and other media similar to how the music industry runs. A lot of tech companies are freeloading (and other organisations) on other's creative art. The problem with Google and others is that they using content to boost eyeballs. That usually requires a usage licence, which doesn't exist and enforcing this in Europe is difficult as DCMA doesn't apply (although companies do follow it's guidance). A lot of press organisations, small photographers and other artists are struggling to enforce usage agreements because of the sheer scale of abuse. At least Bing tried to offset by stating it upfront the copyright and usage but Google took a long time to do this. Spend any time on the photography, artists, and CGI boards you will see how much of an impact this has on those communities. All images are copyright unless they are specifically in the public domain hence the hardline drawn by Europe, and an artist should get paid for their work. That's what's the EU is trying to address, essentially from context it's partially to force a royalties fee similar to what the music industry uses to distribute a pot at the end of each year to those who's music has been played in concerts, radio stations, weddings, etc. whether that happens remains to be seen. This is Google (and others) trying to create scare tactics and I have yet to see any decent analysis of the new copyright laws being introduced by a tech blog other than regurgitating the same old rubbish. Some of your own concerns have been directly address by the FAQs when this was ratified.